Why we must save the lodestar of Indian democracy—the Constitution of India
And why our Constitution is as much a political and moral document as a legal one
We, the people, owe each other obligations of justice. This [...] can only be realised when the dry bones of the law are clothed with an emotion we call sympathy or solidarity. This is necessary because someone has to speak back to power when the Constitution is violated. It is undeniable that governments have done so in the past. They have ignored the intellectual labour, the wisdom, the spirit of dialogue and compromise, and above all, the creativity that marked interactions between the members of the Constituent Assembly. It is a credit to these fine minds that their vision of how India should be politically organised, has, to a great extent, endured since Independence in the political imagination of social movements.
The Constituent Assembly, which was set up in December 1946, was indirectly elected by the provincial assemblies elected earlier in the year. While introducing the Objectives Resolution, Pandit Nehru said: ‘[T]his Constituent Assembly is not what many of us wished it to be. It has come into being under particular conditions and the British Government ha[d] a hand in its birth. They have attached to it certain conditions. We accepted the State Paper, which may be called the foundation of this Assembly, after serious deliberations and we shall endeavour to work within its limits. But you must not ignore the source from which this Assembly derives its strength... We have met here today because of the strength of the people behind us and we shall go as far as the people... shall wish us to go. We should, therefore, always keep in mind the passions that lie in the hearts of the masses of the Indian people and try to fulfil them.’
‘The Resolution’, continued Pandit Nehru, ‘that I am placing before you is in the nature of a pledge. The Resolution deals with fundamentals which are commonly held and have been accepted by the people. [I]t is our firm and solemn resolve to have a sovereign Indian republic... The Resolution does not go into [the] details. It contains only the fundamentals... Laws are made of words, but this Resolution is something higher than the law.’ The old order is fast changing, he said, yielding place to the new. We need to look at the spirit behind the word.
The Indian Constitution institutionalised the precepts and the objectives of democracy, the ‘fundamentals which are commonly held and have been accepted by the people’. However, [...] in the hands of an elite hungry for power, constitutions can be stripped of their prescriptive and regulatory roles. Dr Ambedkar had warned us against precisely this development in his final address on the Draft Constitution on 25 November 1949.
‘[H]owever good a Constitution may be,’ he remarked, ‘it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution.’ It depends also on the people and on the political parties they elect. ‘It is, therefore, futile to pass any judgement upon the Constitution without reference to the part which the people and their parties are likely to play.’
Given the context of the Partition, a divided country needed a new set of norms that went beyond politicised religion in order to be constituted as a political community based on solidarity. A set of norms, which the chairman of the Drafting Committee hoped would, to a greater or lesser extent, prevent our Constitution from ‘turn[ing] out bad’. In response to criticism of the Draft Constitution, on 4 November 1948, Ambedkar acknowledged that detailed administrative provisions should ideally not form a part of a constitution. But the inclusion of procedures and processes in the founding document, he insisted, was necessary to protect democracy. For, as he was to say famously, democracy ‘in India is only a top- dressing on an Indian soil, which is essentially undemocratic.’
Dr Ambedkar brought great learning, immense political understanding, and insightful perception to the deliberations of the Constituent Assembly. He also brought to the debate vast wisdom born out of his own experiences as a Dalit. Life had taught him that it was not enough for the people to give themselves a constitution. The constitution needed to become a part of their lives. It needed to be an object of reverence and of political passion. This virtue he called constitutional morality.
He was far too conscious of the many oppressions and the many tyrannies of a caste-bound society. The only way out of a hierarchical society was constitutional morality, which could override socially discriminatory laws, taboos and regulations and at the same time promote a sense of freedom. This, he hoped, would ensure restraint on the exercise of power. In sum, only when society was saturated with constitutional morality could we take the risk of omitting the details of administration in the Constitution, Ambedkar argued.
But can we presume, asked Ambedkar in a rhetorical masterstroke, that there is diffusion of constitutional morality in India? For constitutional morality has to be cultivated; it is not a natural sentiment. The power elite had to, as [George] Grote [(1794–1871), the British historian and Enlightenment thinker, whose idea of constitutional morality shaped Ambedkar’s] had theorised, ‘create in the multitude...that rare and difficult sentiment which we may term constitutional morality—a paramount reverence for the forms of the constitution’. Since Indian society was profoundly undemocratic, a government that was passionately attached to the morality of the constitution had the task of inculcating and fostering this sentiment.
This was prudent from the perspective of the ruling class, because constitutional morality bred moderate politics. Otherwise societies will land up, as Grote had warned, with the sort of excesses that were bred by the French Revolution. ‘The many violences’, Grote had written, ‘of the first French revolution illustrates among other lessons, the fatal effects arising from its absence, even among a people high in the scale of intelligence.’
Dr Ambedkar shared this suspicion of unguarded and radical political action. Clashes of interest had to be resolved within the framework of the Constitution. Since the adoption of the Constitution heralded the transition from subject to citizen, the transition, for him, marked the end of agitational politics.
The foregoing is excerpted from:
Title We, the People, and Our Constitution
Author Neera Chandhoke
Publisher Speaking Tiger
Price Rs 399